Embroiled in a nasty legal fight over the South China Sea, Beijing is putting Manila on notice -- even in the midst of tragedy.

By David BoscoDavid Bosco is an associate professor at Indiana University's School of Global and International Studies. He is the author of books on the U.N. Security Council and the International Criminal Court, and is at work on a new book about governance of the oceans.

November 13, 2013

In the wake of the devastating Typhoon Haiyan, international aid is flowing to the Philippines. The United Nations released $25 million from an emergency fund and the United States pledged $20 million in immediate relief. But, for the moment at least, precious little assistance is coming from the region’s behemoth. The Chinese authorities announced a paltry $100,000 in humanitarian aid (along with another $100,000 via the Red Cross Society of China).Beijing’s cold shoulder fits with a broader diplomatic isolation of Manila, which China has shepherded. In recent months, China’s foreign minister hasmet withall 10 counterparts from the Association of Southeast Asian Nation (ASEAN) member-states — except the Philippines. A key point of friction has been the Philippines’ willingness to challenge Beijing’s maritime claims.

The most dangerous flashpoint came in the spring of 2012, when vessels from the Philippines and China engaged in a weeks-long standoff over waters near the Scarborough Shoal, a rocky formation little more than 100 miles from the Philippines’ Subic Bay, the once (and perhaps future) home of a U.S. Navy base.The incident began when Filipino sailors boarded a Chinese vessel fishing in what the Philippines considers its own maritime economic zone. After an unnerving naval escalation, the confrontation ended a few months later with China in effective control of the disputed waters.

The incident revealed just how badly the Philippines is outmatched at sea. Partly in response, the Philippines wants to upgrade its military cooperation with the United States. "We stand ready to tap every resource, to call on every alliance to do what is necessary to defend what is ours," Filipino Foreign Minister Albert del Rosario said in August. The government is also snapping up second-hand vessels to bolster its own fleet. But these moves won’t change the archipelago’s lack of wherewithal to challenge China’s claims. Beijing boasts an expanding and modernizing naval fleet, and in August, Chinese president Xi Jinping inspected the country’s first aircraft carrier. A Ministry of National Defense spokesman said "there will surely be more in the future."

But if on the high seas Manila is at a profound disadvantage, the courtroom may level the playing field. In the realm of international law, the power balance is often less tilted, and that is where the Philippines has turned. In January, the Philippines foreign minister informed China’s ambassador that the country was filing suit against China. Beijing angrily rejected the claim and has vowed not to participate in the case, insisting on its "indisputable sovereignty" in the area. But the case is moving forward nonetheless, and every state with an interest in Asia’s troubled waters is watching closely. For all Beijing’s bluster, the Philippines stands a good chance of denting China’s maritime claims.

The Chinese claims in the South China Sea are embodied in the now notorious "nine-dash line" that China first formally presented internationally in 2009. The gigantic U-shape marks what China views as its maritime entitlements in the area. It encompasses nearly 90 percent of the South China Sea, including rich fishing grounds and areas with potential oil, gas, and mineral deposits. China claims exclusive rights in waters only a few dozen miles from the Philippines, Malaysia, and Vietnam — three nations which all object to China’s claims.

The foundations for the nine-dash line are convoluted, and lean as much on ancient history as they do on modern law. Two Chinese scholars recently tracedChinese influence in the sea as far back as the 5th century A.D. Through its legal case, the Philippines aims to expose the gap between these venerable claims and the 1982 U.N. Convention on the Law of the Sea (UNCLOS), which provides rules for what states can claim as territorial seas (which extend 12 miles from shore) and as "exclusive economic zones" (which normally extend 200 miles).

China might simply insist that UNCLOS doesn’t apply, but for the inconvenient fact that China (unlike the United States) has ratified the treaty. Even less convenient from Beijing’s perspective, joining UNCLOS committed China to an international arbitration process for disputes related to the agreement. With its January filing, the Philippines set that process in motion, and a group of experienced arbitrators has assembled to review the case.

It’s no surprise the Philippines was the only aggrieved state willing to sue the Asian behemoth: it is by far the most assertive of the smaller countries with an interest in the South China Sea. In 2012 it pushed hard for a statement by ASEAN on the maritime disputes, leading to the group’s embarrassing failure to release a joint statement at the conclusion of that year’s summit — and plenty of hard feelings on all sides.

Diplomatic support for the case in the region — even among states angered by China’s claims — has been muted, because of concerns that the Philippines arbitration "might have negative repercussions for ASEAN-China relations," wrote Ian Storey, a senior fellow at the Institute of Southeast Asian Studies. Wary of Beijing’s influence, most ASEAN states have called blandly for a peaceful resolution of the dispute. If the Philippines had hoped that fellow skeptics of the nine-dash line would line up behind their lawsuit, they have been disappointed.

China’s political and economic weight accounts for the diplomatic reticence, but the complexity of the legal issues may also be discouraging states from rallying to Manila’s side. Chinese officials — and some independent maritime law scholars — argue that the international arbitrators have no jurisdiction. They point in particular to a set of restrictions on arbitration that China announced in 2006. These restrictions, which China is within its legal rights to assert, preclude arbitrations related to maritime "delimitation," military activities, certain types of historical claims, and questions of sovereignty over territory.

At first glance, those restrictions poke several holes in the Filipino case. University of Bonn scholar Stefan Talmon wrote in May that Manila’s claims "cannot be decided without deciding on matters outside the jurisdiction of the tribunal." The prohibition on arbitrators considering "historic bays and titles" — one of the categories UNCLOS allows states to exclude from arbitration — seems almost designed to immunize Beijing’s history-based claims in the South China Sea.

The Philippines is convinced, however, that it has found a way through these jurisdictional obstacles. The government signed up a veteran litigator of maritime disputes to fashion the complaint and argue their case. Washington D.C.-based lawyer Paul Reichler has previously represented Nicaragua, Bangladesh, Mauritius, Guyana, and Croatia in disputes involving maritime issues. When I spoke to him recently, he walked me through Manila’s case and explained why none of China’s restrictions on jurisdiction should prevent the arbitrators from ruling on the case.

He dealt first with the question of whether China’s alleged historical rights in the South China Sea will prevent the arbitrators from considering the case, insisting that the UNCLOS notion of "historic title" has a very narrow meaning. "States can’t claim historical title in the open ocean," he says. "The concept applies only to waters very close to the coast that have historically been regarded as a State’s internal waters."

Reichler also maintains that the case is not about delimitation of maritime boundaries, which is excluded from arbitration, but about the distinct process of determining what China’s and the Philippines’ entitlements in the South China Sea are under UNCLOS (you can’t delimit maritime boundaries without first determining entitlements, Reichler points out). Nor is the Philippines asking the arbitrators to rule on the sovereignty of several disputed islands in the South China Sea. Instead, the Philippines wants the tribunal to distinguish between islands, rocks, and permanently submerged features. UNCLOS provides clear guidance for making those distinctions, which hinge on whether the formation in question is permanently above water and can sustain human life and economic activity.

Some observers believe the Philippines has threaded the legal needle. "I am optimistic that the arbitrators will decide they have jurisdiction to hear at least some of the issues presented by the Philippines," says Peter Dutton, a law of the sea expert at the U.S. Naval War College. He expects the tribunal will find that the Philippines "does have rightful claims to the resources in some of the waters within China’s nine-dash line."

There are practical reasons the arbitrators might seek to avoid ruling on the dispute. China’s refusal to participate sends an important signal about its intentions, and the arbitrators might balk at putting Beijing on a collision course with UNCLOS. But if the panel does rule in favor of the Philippines, the dispute will change. The nine-dash line won’t merely be exorbitant — it will be legally dubious.

Beijing might shift tack and adopt a more conciliatory approach. Indeed, the arbitration process is slow, and there’s plenty of time left for diplomacy. But China’s cold response to the tragedy of Typhoon Haiyan doesn’t provide much ground for optimism.

About David Bosco

David Bosco is an associate professor at Indiana University's School of Global and International Studies. He is the author of books on the U.N. Security Council and the International Criminal Court, and is at work on a new book about governance of the oceans.